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Friday, 9 November 2012

The BNP and Strasbourg: Redfearn v United Kingdom

There was irony aplenty this week as a BNP member, whose party considers the Convention on Human Rights to be a means by which Britain may be exploited by "the world's scroungers" and promises its immediate abolition, won a case in Strasbourg.  The case is Redfearn v United Kingdom (App. No. 47335/06).  

A good summary and analysis appears on the UK Human Rights Blog by Martin Downs here.

Mr Redfearn was a bus driver.  He was employed by a private company, Serco Ltd (Serco), which in turn supplied his services to a local authority.  There were no complaints about the standard of his work for Serco Ltd and in fact his supervisor, who was of Asian origin, had nominated him for the award of "first class employee".

Redfearn's political affiliation became public when he was elected as a BNP councillor.  A number of complaints were received from unions and employees, following which he was dismissed.  The grounds given for dismissal were that he would present a risk to the health and safety of his co-workers and passengers and jeopardise the reputation of his employer.  These were all based on his BNP membership.

Mr Redfearn challenged his dismissal without success in the domestic courts but, as mentioned, has just succeeded in Europe.  It needs to be emphasised that he has only won a preliminary victory.  He wished to argue that he had been unfairly dismissed on account of his political beliefis or affiliations.  He was precluded from doing so by the requirement of domestic law that required a year's service before such complaints could be made.  That one year qualifying period did not, however, apply to grounds of pregnancy, race, sex or religion.  The majority of the Strasbourg court found that that exception needed to be reconsidered and expanded to include political opinion or affiliation, or a free standing cause of action to the same effect.

Here is a classic example of why exceptions from a general rule  - in other words, breaches of the rule of law - are a minefield.  The one year rule was thought by Parliament to be necessary to encourage employers to take on more staff.  Then it was thought that some forms of ill treatment, such as discrimination, were so serious that an exception should be made to the general rule.  Now, almost inevitably, more exceptions are found necessary, after expensive litigation, leaving the open question of whether still more might be found in the future or else deserving claimants will be left without a remedy.  Employers will not be happy either and will be more cautious about hiring new staff as a result. 

Another side issue concerns the application of the Convention to a private employment contract, and whether Serco was in fact equivalent to an arm of the state because it was supplying services for the local authority.  I will however leave that aside to keep the post within manageable length.

Let us return therefore to the substantive dispute. Without belittling the skill and responsibility involved, if Mr Redfearn's job was simply to drive a bus it is hard to see how his political affiliations (or religious beliefs, or philosophical views) would have been relevant. They might have been if he had chosen to display them by symbols, or logos, or if he had been covered in aggressive or offensive tattoos; or if he had decided to treat his passengers differently according to their race or gender or appearance. 

One of the key principles behind anti-discrimination laws - ironically the very type the BNP generally opposes - is that people should not be subject to different treatment in employment for irrelevant reasons. Race, gender, political opinions and membership of a lawful political organisation are generally irrelevant to most jobs and certainly, one would have thought, driving a bus.

If the driver's performance was satisfactory, then membership of a legal organisation would not be grounds for dismissal but instead an exercise of the basic human right of freedom of association, even if it involved associating with a group that would, if given the chance, remove a few basic human rights.

Then there is the question, already raised in Redfearn's case, whether he could have been moved to a non-customer facing role.  If so, suppose Redfearn changed his mind and disowned the BNP: would he then be able to demand reinstatement to his previous role or at least reconsideration of his suitability elsewhere?  Would there be a test of his sincerity? If so, would that be amenable to review by the employment tribunal?

The BNP is a party whose doubtful reputation on human rights and indeed human decency needs no elaboration. Moreover, most of its policies, even leaving aside their objectionable nature, are no more than slogans anyway, unworthy of serious study or attention.  The party's performance at the ballot box has, thankfully, largely corresponded todate.  But here we have the classic liberal dilemma of tolerating intolerance.  The BNP has made clear it would like to expel anyone it doesn't like from the country, if it could get away with it.  By contrast, a more tolerant society than the one the BNP would like to foist upon us has to tolerate dissent.  It also has to tolerate even highly objectionable opinions, in the name of free speech, free association and freedom of religion. 

One only has to look at what happens to political undesirables in other countries to realise that toleration of minorities, and even what most people find very objectionable minority views, is a fundamental requirement for democracy and freedom.  Then there is the employment law perspective: people should only be promoted, demoted or fired for reasons connected with and relevant to their employment. In the case of a bus driver this does not include membership of a political party, unless as I have stressed the driver starts to treat his passengers differently or otherwise breaches his contract. 

Homosexuals should not be discriminated against in the provision of services offered to the public, even if it offends the sincerely held religious beliefs of others.  Nor should people be denied the ability to wear religious dress in public. Nor should people be sent to jail for writing offensive garbage on the internet. And people should not be dismissed from their job for holding political views (or indeed for any other reason) unless those views preclude them from doing their job properly, in which case it is their performance, not their views, which should be impugned.

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